New Faculty Publication: Peter Nicolas on Dying Declarations

As Professor Nicolas points out at the beginning of his new article, the admissibility of hearsay evidence has always existed in tension with the Sixth Amendment’s Confrontation Clause, which requires that the accused be given an opportunity to confront witnesses testifying against him or her at trial.

The Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), significantly narrowed the circumstances under which the admission of testimonial hearsay statements is constitutionally permissible. However, a footnote in Crawford created an apparent exception to the new rule for “dying declarations.”

Professor Nicolas examines two questions raised by the Supreme Court’s decision in Crawford:

What are the constitutional parameters of the “dying declaration” exception to the Confrontation Clause?

Do the varying definitions of “dying declaration” currently included in federal and state hearsay exceptions run afoul of the Sixth Amendment?